Q: A borough policy requires citizens to notify the agency 48 in advance and get permission if they plan to record public meetings. The policy also threatens criminal sanctions under the Pennsylvania Wiretap Act if a citizen records a public meeting without permission from the agency. Is that consistent with the law?

A: No. The Sunshine Act allows agencies to create reasonable rules that govern the conduct of public meetings, but the policy described is not reasonable and the threat of prosecution is based on a misunderstanding of the law.

Section 711, along with section 710, allows agencies to create reasonable rules governing the conduct of public meetings, including the use of recording devices. However, any such rule cannot interfere with the statutory right to record meetings or the legislative intent to foster public participation and attendance at meetings. A policy that requires advance notice and permission from the agency in order to record a public meeting creates an unnecessary and unreasonable barrier to access and is contrary to the Law. Moreover, the Sunshine Act already grants permission to record public meetings to anyone in attendance. Local officials do not have authority to rescind statutory rights guaranteed to citizens under state law, and they cannot grant permission locally when permission has already been granted statewide by statute.

With regard to criminal sanctions, the policy references the Pennsylvania Wiretap Act, 18 Pa.C.S.A. § 5701, et seq., which is designed to prevent unwarranted government interception of private communications, but also prohibits private parties from recording a conversation without prior consent of all parties involved. The Wiretap Act does not prohibit the recording of public meetings, nor does it require attendees to obtain permission to record public meetings. The Act’s prohibition on recording oral communications only applies where there is a reasonable expectation of privacy (or a reasonable expectation that a conversation will not be recorded), and Section 711 of the Sunshine Act expressly permits anyone attending a public meeting to record “all the proceedings.” In light of the Wiretap Act’s limiting language, and the express permission to record public meetings granted by the Sunshine Act, the Wiretap Act’s limitations do not apply to public meetings, and attendees should not have to announce their intent to record or obtain permission to record public meetings to avoid Wiretap Act issues.

As always, this is not intended to be, and should not be construed as, legal advice. Please contact your newspaper’s attorney or the Legal Hotline at (717) 703-3080 with questions.